The boys under the bus

Edward Wasserman is the Knight professor of journalism ethics at Washington and Lee University. He recently wrote a column for the Miami Herald that comes to the defense of Dan Rather in his lawsuit against CBS. The column was drawn to my attention when it was republished this week by the Star Tribune under the heading “How Dan Rather got thrown under the bus.”

Wasserman first notes that CBS considered putting its harshest conservative critics on the panel that would investigate Rather’s bogus story about President Bush’s Texas Air National Guard service. Among those mentioned as possibilities by CBS were Rush Limbaugh, Matt Drudge, and Ann Coulter. In the end, of course, the investigation was handled by two establishment figures, former Attorney General Richard Thornburgh and former AP head Louis Boccardi.

Wasserman asserts that the panel was assembled to the specifications of the president’s most zealous supporters. However, Wassmeran skips a few steps in his accusation. He does not make out how Thornburgh and Boccardi fit the specifications of the president’s most zealous supporters.

Wasserman then proceeds to argue the merits and make light of the faults of the story that ultimately led to Rather’s departure from CBS:

It presented a compelling case that George W. Bush’s record with the Texas Air National Guard was marked by favoritism and dereliction. It was based on a number of interviews and, notably, on several documents — chiefly memos from Bush’s squadron commander — whose authenticity was immediately challenged.

Rather did little reporting for the segment, but led the defense. Within three weeks the network caved and said it shouldn’t have relied on the documents. That concession was viewed as acknowledging fundamental problems with the segment’s veracity. So were the conclusions of the review panel headed by Thornburgh and Boccardi.

But their 223-page report did no such thing.

Though sharply critical of the network’s strident dismissal of critics, the panel never concluded the broadcast was wrong — that Bush’s military record wasn’t marked by favoritism and dereliction. Nor did it ever say the disputed documents were bogus. Instead, the panel concluded the documents couldn’t be proven genuine, and for a simple reason: They were photocopies. And experts are reluctant to vouch for the authenticity of any document when they can’t inspect its paper and ink.

What’s more, the panel said, the producers failed to ascertain precisely how the documents got to them — the “chain of custody” — and therefore weren’t justified in using them. In an extraordinary passage, the panel scolded the producers for not knowing “the background, identity, credibility, motivations, biases and other relevant information about the sources of the documents.”

The panel’s conclusions had little to do with political bias — its own or the network’s — and a great deal to do with the radically different worlds inhabited by lawyers (who constituted the panel) and journalists. A journalist would never retract a story because an evidentiary base is challengeable, but only if the story is wrong — something the White House never alleged.

Plus, under this legalistic “chain of custody” rule, as former New York Times counsel James Goodale has written, the celebrated 1972 Pentagon Papers — based on purloined photocopies supplied by a committed antiwar analyst — would never have been published.

Wasserman cites the Thornburgh-Boccardi report in support of his argument here, but It is hard to believe that Wasserman has read it. If he has read it, this professor of journalism ethics needs to be reminded that it’s not ethical to withhold from your readers relevant evidence directly contradicting your thesis.

Let’s look at the evidence of the documents’ fraudulence in three areas explored by the report, all bearing on authentication of the documents (here I draw on my Weekly Standard column on Mary Mapes’s memoir Truth and Duty).

(1) The source of the documents: The documents on which Rather’s story relied were asserted to have came from Lieutenant Colonel Jerry Killian, then Lieutenant Bush’s commanding officer. The documents purport to derive from his “personal file.” Killian died in 1984; his family denies that the documents emanated from him or them. The lack of any evidence to substantiate the provenance of the documents in Lieutenant Colonel Killian’s “personal file” by itself highlights the absurdity of the argument for their authenticity.

We now know that Rather’s source for the documents was one Bill Burkett. How did Burkett come by the documents? The Thornburgh-Boccardi report notes that Burkett gave three explanations as to how the documents came into his possession, stories whose implausibility increases in each succeeding version. He first told CBS 60 Minutes producer Mary Mapes that the documents mysteriously materialized in the mail. (Mapes omits this first explanation in her memoir.) He then told Mapes that the documents were provided to him by one George Conn, but that Conn would never admit to being the source.

Such was Burkett’s story at the time of the broadcast; so apparently Mapes believed it. After the broadcast, when CBS set out to establish the authenticity of the documents, Burkett told his third and final version of the story. Here is Mapes’s account:

Burkett told us that he had received a phone call in early March of 2004 from an unidentified man, who said that a woman named Lucy Ramirez wanted to speak with him. Burkett said he was told to call her at a Houston Holiday Inn that night between 7:00 and 10:00 P.M. and that he was given a specific room number to ask for. Burkett said that Ramirez told him she was a go-between, a person who was supposed to deliver a package to him.

Burkett told us that Ramirez made him promise that he would handle the package he received from her very specifically. He agreed to copy the documents inside, then burn the original papers he had received, which were also copies, not originals. He was also to burn the envelope they had come in. Burkett said that he agreed to this, assuming that Lucy or whoever she was wanted to destroy any DNA evidence that might be gleaned from the papers or the package they had come in.

Burkett said that Ramirez asked him if and when he would be in Houston and he told her he would be at the Houston livestock show within a couple of weeks, where he and his wife, Nicki, showed and sold Simmenthal cattle. It was an annual showcase for the breed and a good way to advertise the bull semen . . . they and other ranchers sold to make a living. Burkett told Ramirez what he would be working the front information booth at the show, which was held in a large arena.

Burkett said that on his first day working the booth he was handed the papers by a dark-skinned man. He said the man approached him, asked his name, and handed him a legal envelope. We were able to confirm with the cattle association that Burkett had indeed worked the front booth on that date. A coworker of his at the cattle show said that, as Burkett told us, he had asked her to hold a legal envelope for him while a man handed him the papers.

As a fittingly bizarre last touch, Burkett told our group that he had hidden the papers in his venison locker, close to one hundred miles from his home. He boasted that he’d driven so fast to get to our meeting that the papers were still cold from his freezer when he handed them to me.

Mapes calls Burkett’s third story — which she also believes — a “tale of bovine intrigue.” But would any reasonable person believe that the documents procured from Burkett are what they purport to be based on this “tale”? Here is Mapes’s credo:

As I sat listening to Burkett’s scenario spill out, I realized how truly ridiculous this sounded from our vantage in New York. But in Texas, one of the world capitals of “shit happens,” a place where bull semen is worth its weight in gold (and the bizarre long ago became the mundane), I believed it was quite possible that Bill Burkett was finally telling the truth, the whole weird truth, and nothing but the truth. By God, in Texas, anything could happen.

Bull semen is not the bovine substance that this story calls to mind. In any event, I don’t believe that “quite possible” is the threshold of credibility to which journaism professors customarily teach their students to aspire.

(2) The font/typestyle of the documents: The Thornburgh-Boccardi report provides the analysis of forensic document examiner and typewriter expert Peter Tytell, both in the text and at greater length in the report’s Appendix 4. Tytell is a diplomate of the American Board of Forensic Documents Examiners and a highly qualified expert on the issues raised by the typographic characteristics of the documents. Tytell examined the official Bush Guard documents as well as the CBS documents procured from Burkett and concluded that the Burkett documents were produced on a computer in Times New Roman typestyle.

According to Tytell, Times New Roman was designed in 1931 for the Times of London and was only available on typesetting and other non-tabletop machines until the desktop publishing revolution in the 1980s. Tytell concluded that the Times New Roman typestyle was not available on a typewriter in the early 1970s and that the Burkett documents must have been produced on a computer. The Thornburgh-Boccardi report states: “The [Thornburgh-Boccardi] Panel met with Tytell and found his analysis sound in terms of why he believed that the documents are not authentic.” If the documents are not authentic, they are frauds.

(3) The content of the documents: Rather’s defenders such as Wasserman ultimately rely on the contents of the documents to authenticate them. However, if the documents did not come from the personal file of Lieutenant Colonel Killian, if the documents were not typed on a typewriter, they cannot be authentic regardless of their content. Even if the documents “meshed” perfectly with the official Bush Guard records, they would still be frauds.

Wasserman cites James Goodale, who buys into the “meshing” analysis Mapes provides in her memoir. Yet this defense of the documents also fails. Mapes’s analysis of the contents of the documents is scattered throughout her book and in the book’s Appendix 2, her “meshing document.”

The Thornburgh-Boccardi report devotes an entire chapter (chapter VIII) to Mapes’s meshing analysis, comparing the official Bush TANG records with the Burkett documents. The report found several problems with the content of the documents. Wasserman provides no evidence of familiarity with any of them.

To take just one example, in the Burkett document dated May 4, 1972, Lieutenant Colonel Killian orders Bush to report for a physical at Ellington Air Force Base no later than May 14, 1972. Testimony from witnesses, including Major General Bobby Hodges and other officers who served with Bush at Ellington Air Force Base, indicated that no one had ever seen or heard of “an order commanding anyone to take a physical, much less Lieutenant Bush.” The requirement of an annual physical was automatic.

The report found that there was a 90-day window during which a pilot could take his physical, and that the window ended on the last day of a pilot’s birth month; in Bush’s case, the earliest he could have sought a timely physical was on May 4, 1972 and the 90-day window for it would have closed on July 31, 1972. The Thornburgh-Boccardi report accordingly concluded that the May 4, 1972 memo “does not mesh well with the official Bush records.”

Colonel William Campenni also addressed the memo in a January 2005 Washington Times column that was published after the release of the Thornburgh-Boccardi report. Campenni noted:

[For] the weekend that 1st Lt. Bush was supposedly ordered to report for his physical, May 13-14, 1972, the Ellington Air Guard Base was closed. It was Mother’s Day. Except for emergencies, Air Guard units never drilled on Mother’s Day; the divorce lawyers would be waiting at the gate.

If George Bush showed up at the clinic that weekend, he would have had to get the key from the gate guard. The drill weekend for May 1972 was the following weekend, May 20-21.

The Thornburgh-Boccardi report’s chapter setting forth the argument that the documents are not consistent with the otherwise known facts is devastating. Neither Goodale nor Wasserman ever mention, let alone try to refute, the evidence advanced in the report.

Wasserman asserts that Dan Rather does not belong in the media hall of shame with such malefactors as the New York Times’s Jayson Blair and USA Today’s Jack Kelley: “Both were frontline reporters who fabricated, plagiarized or both.” (Let’s not forget, by the way, the Washington Post’s Janet Cooke or the Times’s Walter Duranty, the grand champion of journalistic disgrace.)

Here again, the Thornburgh-Boccardi report would come in handy if Wasserman had read it. It carefully sets forth the nature of Rather’s culpability in the episode, documenting the false assurances provided by Rather that included assurances to CBS’s viewing public on air regarding the veracity of the TANG story after the story aired. Anyone who reads the report will be left in no doubt, however, that Mary Mapes bore primary responsibility for the story’s failings. Senior managers Josh Howard, Mary Murphy and Betsy West also bore significant responsibility for the story and the misleading defense of the story following the broadcast. CBS treated Mapes, Howard, Murphy and West accordingly.

Curiously, Mapes’s name does not appear in Wasserman’s column. Yet the logic of his substantive defense of Rather applies equally to Mapes.

The CBS report was based on fraudulent documents provided by a mentally disturbed source who could not have come into their possession as represented. CBS would have discovered the fraud if it had treated the issue with basic journalistic due diligence. Yet one can only conclude that Mapes and her colleagues ran with the story because of their animus against President Bush. The timing of the story and the animus of Mapes in particular suggest that the story was intended to affect the outcome of the 2004 election. (I should add that the Thornburgh-Boccardi report found no evidence of “a political agenda” in the timing or content of the story. I think a fair reading of the report indicates otherwise, but that’s a different question.)

Thus the bad faith of the CBS TANG story pales next to that of Jayson Blair and Jack Kelley. Regardless of Dan Rather’s level of culpabity for the story as originally broadcast, the story itself is a classic of institutional and professional disgrace. It is odd at the least that a professor of journalism ethics is insensitive to it. For a more clear-eyed view of Rather’s lawsuit, by the way, see Bill Dyer’s “Rather v. CBS: Experts, ‘boardroom truth’ versus ‘courtroom truth,’ and settlement values.”

Dan Rather and Mary Mapes are still peddling the same fraud that CBS was peddling on September 8, 2004 in the story on President Bush’s TANG service. Edward Wasserman has now come to their assistance in peddling the fraud. Whatever the state of their knowledge then, Rather and Mapes must know now that they are peddling a fraud. Although Wasserman portrays Rather as a victim, he is in fact a perpetrator who has yet to acknowledge his offense.